COURT NO.1
HIGH COURT OF SIKKIM : GANGTOK
Record of Proceedings
IA No. 01/2022
Arising out of
WP (C) No.30/2008
With
IA No. 02/2022
Arising out of
WP (C) No.30/2008
With
IA No. 03/2022
Arising out of
WP (C) No.30/2008
N.B. KHATIWADA PETITIONER (S)
VERSUS
STATE OF SIKKIM & ANR. RESPONDENT (S)
For Petitioner : Mr. N. Rai, Senior Advocate.
Ms. Anusha Basnett, Advocate.
Ms. Tara Devi Chettri, Advocate.
For Respondents : Ms. Y.W. Rinchen, Govt. Advocate.
Mr. Hissey Gyaltsen Asst. Govt. Advocate.
Date: 17/03/2022
CORAM:
HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
...
JUDGMENT: (per the Hon'ble, the Chief Justice)
In a writ petition, being WP(C) No.30 of 2008 (Shri N.B. Khatiwada vs.
State of Sikkim and another), the following order was passed on 17th November,
2018:
"Mr. N. Rai, learned Senior Counsel for the petitioner, submits that he requires some time to seek instructions from his client about the status of SLP(C) No. 1877 of 2009, pending before the hon'ble Supreme Court.
On the request made by Mr. N. Rai, list this case on 29.11.2018."
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COURT NO.1 HIGH COURT OF SIKKIM : GANGTOK Record of Proceedings
Subsequently the writ petition came up for consideration on 29th
November, 2018, when the following order was passed:
"Mr. N. Rai, learned Senior Counsel for the Petitioner, submits the he may be allowed to withdraw the petition.
Permission is granted.
Accordingly, writ petition stands disposed of as withdrawn."
Now, after almost three and half years, three interlocutory applications
have been filed by the writ petitioner in connection with the said disposed of
writ petition, being WP(C) No.30 of 2008.
In I.A. No.01 of 2022, the writ petitioner seeks condonation of delay of
1148 days in filing the application seeking restoration of WP(C) No.30 of 2008
by recalling the order dated 29th November, 2018.
In the next interlocutory application, being I.A. No.02 of 2022 - which
purports to be an application under section 151 of the Code of Civil Procedure,
1908 - the following prayer appears:
"In the circumstance, it is respectfully prayed that the aforesaid Order dt. 29.11.2018 may be recalled and the said Writ Petition may be restored to its original number and may be put up for hearing as per the convenience of this Hon'ble Court and pass such orders as may deem fit and proper in the interest of justice."
In paragraph 3 of the same application, the following statement has been
made:
"That due to confusion and complete mixing up of the facts of the case and the nature and scope of the relief sought in the said writ petition, the said petition was inadvertently withdrawn on 29.11.2018."
In the last interlocutory application, being I.A. No.03 of 2022, the writ
petitioner has prayed that the order-sheet dated 3rd March, 2022, passed by the
Hon‟ble Supreme Court in Civil Appeal No(s).6937/2009 (Nar Bahadur
Khatiwada vs. State of Sikkim through the Secretary and Another) may be kept
on record and pass such orders as may deem fit and proper in the interest of
justice.
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COURT NO.1 HIGH COURT OF SIKKIM : GANGTOK Record of Proceedings
The facts of the case, which are relevant, have been narrated above. The
question is, whether in such facts and circumstances, these three interlocutory
applications could at all be maintained at this point of time or not. The answer
to this question is an emphatic, „no‟. The reason is, on 29th November, 2018, it
was solely at the instance of the learned senior counsel appearing on behalf of
the writ petitioner that the said writ petition, being WP(C) No.30 of 2008, was
allowed to be withdrawn. Thereafter, to return to this Court after almost three
and half years and to state, "that due to confusion and complete mixing up of
the facts of the case and the nature and scope of the relief sought for in the said
petition the said petition was inadvertently withdrawn on 29th November, 2018",
is nothing but a clear abuse of the process of this Court.
We are of the view that in such facts and circumstances, exemplary costs
should be imposed upon the writ petitioner (being the applicant before us). At
this stage, the learned senior counsel appearing on behalf of the writ petitioner/
applicant prays that cost may not be imposed.
While we refrain from imposing any costs, the three interlocutory
applications are liable to be summarily dismissed for reasons stated above and
stand accordingly dismissed.
(Meenakshi Madan Rai) (Biswanath Somadder)
Judge Chief Justice
jk/ds/ami
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